Connelley v. Pennsylvania R. Co.

• Decision Date: 02 December 1912
• Docket Number: 1,682.
• Parties: CONNELLEY v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

201 F. 54

CONNELLEY v. PENNSYLVANIA R. CO.

No. 1,682.

United States Court of Appeals, Third Circuit.

December 2, 1912

John Hampton Barnes, of Philadelphia, Pa., for plaintiff in error.

Guilliaem Aertsen, Jr., and Francis Rawle, both of Philadelphia, Pa for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

BUFFINGTON Circuit Judge.

In this case the plaintiff, Mrs. Ellen Connelley, administratrix of Thomas Connelley, brought suit against the Pennsylvania Railroad Company, charging it with negligence in operating one of its trains, by reason of which negligence her husband Thomas Connelley, was killed. On trial she recovered a verdict, whereupon the railroad moved for judgment notwithstanding such verdict on the ground, amongst others that the proof showed no negligence on the part of the defendant. The trial court denied such motion, and entered judgment in plaintiff's favor. Thereupon the railroad sued out this writ, alleging the proofs failed to show its negligence, and that binding instructions in its favor should therefore have been given.

The statement of claim avers deceased was employed as a trackwalker on the tracks of the main line of the defendant in the city of Philadelphia between Broad street and West Philadelphia Stations, and that 'while the said Thomas Connelley was so employed, and in the course of his said employment, he was on the 4th day of November, 1910, run down and killed by a train belonging to and operated by the defendant company by reason of the negligence of the defendant company's employes in operating the same, and by reason of the negligence of the defendant company's employes in failing to give the said Thomas Connelley while so employed due and proper warning of the approach of said train. ' The proofs showed that there are eight or nine tracks between these two stations, that there are numerous cross-overs and frogs, and the system widens into 16 tracks running into Broad Street Station. Over these tracks there is the constant passage of several hundred trains incident to such a station. The employment of the deceased was to continuously walk over and watch these tracks, and repair any small job, such as tightening bolts, etc. The trackwalkers go in pairs, so that they can better lookout for each other's safety. At the time of the accident Connelley and Rowan, his companion, who were both experienced men, were walking their beat together. It was a dull, damp, and misty morning. When near Twenty-Second street, they came opposite an engine which was standing still and blowing smoke and steam towards the track on which these two men were. This steam so enveloped them as to hide them from view. Here the men stopped, and Connelley began tightening a bolt. About a minute or two before the accident, Rowan called Connelley's attention to the steam enveloping them, and said they had better move to one side. Rowan's account is:

'I says, 'There is a lot of steam here.' I says, 'We had better move to one side.' That was about a minute or two before this happened, and the last words he spoke. He said he had the bolt nearly tightened now. Just about a minute or so, I judge it was over a minute after that, this here draft came along. Of course, we could not see it very handy. Of course, there was steam blowing there, and I did not see it until about five or six feet away. So I hollered as soon as ever I seen it coming, you know, and I says to myself, if I jump, the wheels may happen to catch me, so I stood right in the middle of the track with my back to it, and let the train hit me. I went right down, and one of the big cars and half a car went right over me.'

Connelley was struck just after Rowan went down, but, instead of falling in the middle of the track as Rowan did, he fell on the rail, was run over, and killed. The train that struck him was composed of empty passenger cars, and was being backed into the Broad Street Station. On the end of the train which struck decedent a brakeman was stationed to give warning to any one he saw by shouting or whistling. His testimony was that he was on watch, and had control of the air brake, but, owing to the cloud of steam enveloping Connelley and Rowan, he did not see them until the car was hitting them, that he instantly applied the air, but, on account of the wet rails, the train slid.

'You cannot warn the men of every train coming. They are supposed to watch for themselves. They have a steady job of trackwalkers, walking these tracks, and they walk the tracks all over in the morning and continue, and if they see anything wrong, of course, it is their duty to repair it-- that is, small jobs, tightening bolts, etc.-- and one of these men is supposed to watch for the other while the other is working. That is the instructions they get.'

The case was submitted to the jury under instructions:

'The first thing, therefore, for you to determine is whether or not there was negligence in the operation of the train that killed Mr. Connelley. If there was no negligence in the operation, then there can be no recovery in this case.'

The above facts were all proved by the plaintiff, and are undisputed. We are clear they disclose no negligence on the part of the railroad in operating its...